State v. Rodriguez

IN THE SUPREME COURT OF NORTH CAROLINA
No. 302A14
Filed 8 June 2018
STATE OF NORTH CAROLINA
v.
JUAN CARLOS RODRIGUEZ
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing
a sentence of death entered by Judge R. Stuart Albright on 21 March 2014 in Superior
Court, Forsyth County, upon a jury verdict finding defendant guilty of first-degree
murder. Heard in the Supreme Court on 10 October 2016. Following the initial oral
argument, this case was reargued on 9 October 2017.
Josh H. Stein, Attorney General, by Mary Carla Babb and Kimberly N.
Callahan, Assistant Attorneys General, for the State.
Glenn Gerding, Appellate Defender, by Barbara S. Blackman, John F. Carella,
and Kathryn L. VandenBerg, Assistant Appellate Defenders, for defendant-
appellant.
ERVIN, Justice.
Defendant Juan Carlos Rodriguez was convicted of the first-degree murder of
his estranged wife, Maria Magdelana Rodriguez, and sentenced to death. After
careful consideration of defendant’s challenges to his convictions and sentence in light
of the record and the applicable law, we find no error in the proceedings leading to
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Opinion of the Court
defendant’s conviction and the jury’s rejection of his intellectual disability defense.1
On the other hand, we conclude that the trial court erred by failing, acting ex mero
motu, to submit the statutory mitigating circumstance enumerated in N.C.G.S. § 15A-
2000(f)(6) (“[t]he capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired”) to the jury at
defendant’s capital sentencing hearing. As a result, we vacate defendant’s death
sentence and remand this case to the Superior Court, Forsyth County, for a new
capital sentencing hearing.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
Defendant and Ms. Rodriguez became emotionally involved with each other in
late 1992. The couple married when Ms. Rodriguez was thirteen years old and
defendant was sixteen or seventeen years old and had their first child when Ms.
Rodriguez was fourteen years old. Unfortunately, defendant became physically and
emotionally abusive towards Ms. Rodriguez following their marriage. This pattern
of domestic violence continued after the couple came to the United States.
On 11 October 2010, Ms. Rodriguez entered a domestic violence shelter with
her three children because she could “no longer live with [her] husband” and did not
1 Although the statutory provisions in effect at the time of defendant’s trial spoke in
terms of “mental retardation,” this opinion will use the currently applicable nomenclature of
“intellectual disability” in lieu of the earlier statutory expression.
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“have anywhere else to go.” At the time that she entered the shelter, Ms. Rodriguez
noted on an intake form that defendant had threatened to kill her, controlled most of
her daily activities, and was violently jealous of her. Although Ms. Rodriguez left the
shelter on 19 October 2010, she returned on 29 October to retrieve certain
medications that she had left at that location. During the 29 October visit to the
domestic violence shelter, Ms. Rodriguez seemed “happy” and “optimistic” and told
shelter personnel that, while she was “doing well” and while Mr. Rodriguez “ha[d] not
tried to move back in,” “she [wa]s struggling to find employment” and “need[ed]
assistance with food.” On the other hand, Ms. Rodriguez told her friend, Merlyn
Rodriguez, on 17 November 2010, that she was afraid of defendant; that he had “told
her that if they didn’t get back together, he would kill her”; and that “he could get rid
of her and just throw her in the river.”
On 18 November 2010, defendant came to the couple’s former apartment,
which was located at 1828 Trellis Lane in Winston-Salem and in which Ms. Rodriguez
and the children had resided following the couple’s separation, and asked Ms.
Rodriguez to speak with him privately in the master bedroom. After a few minutes,
the Rodriguez children, who were listening to music in the living room, heard Ms.
Rodriguez cry for help. Santos Estela Rodriguez, one of the couple’s children,
attempted to open the door to the master bedroom but found that it was locked.2 After
2 Defendant’s son, Juan Carlos Rodriquez, gave an account of the events that occurred
at the 1828 Trellis Lane apartment that closely resembled that provided by Santos Estela
Rodriquez.
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failing to gain access to the master bedroom by using a knife, Santos Estela Rodriguez
told defendant that she was going to call the police. Shortly thereafter, defendant
emerged from the master bedroom with blood on his knuckles, feet, and clothes. As
soon as Santos Estela Rodriguez entered the master bedroom and “saw her mother
on the floor” “breathing really hard,” defendant stated that Ms. Rodriguez had hurt
herself on the furniture and that he was taking Ms. Rodriguez to the hospital. After
hoisting Ms. Rodriguez over his shoulder, defendant carried her to his vehicle.
Several hours later, defendant returned to 1828 Trellis Lane without Ms.
Rodriguez. Upon arriving at the apartment, defendant asked the children and the
son of a neighbor to help him clean the blood stained carpeting in the master bedroom.
Although Santos Estela Rodriguez called all of the nearby hospitals, she was never
able to locate her mother. On the following morning, 19 November 2010, defendant
took the children to the home of his boss, Henry Ramirez, who lived in Eden. During
the trip to Eden, Santos Estela Rodriguez observed the presence of blood in
defendant’s vehicle. A subsequent examination of defendant’s vehicle by
investigating officers revealed the presence of vomitus on the rear floorboard on the
driver’s side and blood on the interior of the rear driver’s side door jamb, the back
portion of the rear seat, a tan shirt located upon the upper portion of the rear seat,
the rear floor mat on the driver’s side, and the spare tire cover in the trunk.
At the time that investigating officers searched the apartment at 1828 Trellis
Lane, they noticed that the premises were in disarray and that cleaning products
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could be found throughout the residence. “[A] large pool of blood or a large stain of
what appeared to be blood [could be seen] on [the] carpet.” According to another
investigating officer, the carpet in the master bedroom “was discolored a pinkish
color” and “frayed as though it had been scrubbed.” Additional blood spatter patterns
could be observed in the master bedroom as well.
At about 11:30 p.m. on 18 November 2010, Merlyn Rodriguez ’s sister, Zoila
Rodriguez , began receiving messages from Ms. Rodriguez’s phone. The messages
received from Ms. Rodriguez ’s phone stated that:
Soyla, I went with my secret boyfriend to Spain. Carlos
does not know. If he calls, tell him the truth and take care
of the children. I met him three months ago. Cut the phone
off because it doesn’t work in the airport. Good-bye. I will
call you from Spain. . . . I don’t have a charge anymore.
Good-bye. Cut the telephone off. Later, I will fix it. I will
call you from there.
Although Ms. Rodriguez knew how to spell Zoila Rodriguez’s name, defendant later
spelled Zoila’s name as “Soyla” while conversing with investigating officers.
On 19 November 2010, Merlyn Rodriguez attempted to telephone Ms.
Rodriguez on several occasions. However, each of Merlyn Rodriguez’s calls went
unanswered. After ascertaining that Ms. Rodriguez was not in her apartment,
Merlyn Rodriguez called defendant, who initially told Merlyn Rodriguez that he did
not know where Ms. Rodriguez was before stating that Ms. Rodriguez had “[s]tepped
out of the house that night” and “never came back” and finally telling Merlyn
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Rodriguez that Ms. Rodriguez had “had an accident that night” and “was at the
hospital.”
Following her conversation with defendant, Merlyn Rodriguez called the
police. Officer L.N. Williams of the Winston-Salem Police Department responded to
Merlyn Rodriguez’s missing person report, entered Ms. Rodriguez’s apartment, and
determined that she was not there. At that point, Officer Williams obtained
defendant’s phone number from Merlyn Rodriguez and called defendant for the
purpose of inquiring into Ms. Rodriguez’s whereabouts. Defendant told Officer
Williams that Ms. Rodriguez had gone for a walk and did not return. After
ascertaining that Ms. Rodriguez was not at work or at a local shelter and that the
Rodriguez children were not in school, investigating officers began treating this
matter as a high-risk missing person’s case.
Defendant spent the night of 19 November 2010 with his pastor, David Agueda,
in Martinsville, Virginia. On the following morning, while leading Saturday services,
Pastor Agueda learned that investigating officers were looking for defendant and Ms.
Rodriguez. Upon obtaining this information, Pastor Agueda advised defendant to
turn himself in.
At approximately 7:00 p.m. on 19 November 2010, Lieutenant Steven Tollie of
the Winston-Salem Police Department reclassified the case as a homicide and
assigned it to Detective Stanley Nieves. After investigating officers located defendant
on 21 November 2010, he was taken to Eden to be interviewed by Detective Nieves.
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In response to Detective Nieves’s request that he describe the events that had
occurred on 18 November 2010 at the 1828 Trellis Lane apartment, defendant stated
that Ms. Rodriguez had told him that she was a lesbian and no longer wanted to be
with him, that Ms. Rodriguez had hit her head against the dresser while lunging at
him, and that Ms. Rodriguez had called for help after falling to the floor. At that
point, defendant assisted Ms. Rodriguez in her efforts to get up, carried her to his car,
and began to drive her to the hospital. As he did so, Ms. Rodriguez told defendant to
stop, left the vehicle, and walked out of defendant’s sight. Although Detective Nieves
repeatedly accused defendant of having killed Ms. Rodriguez and having knowledge
of the location at which Ms. Rodriguez’s body could be found, defendant repeatedly
denied Detective Nieves’s accusations.
On the afternoon of 12 December 2010, which was a “very cold, damp” day
featuring light snow and misty rain, investigating officers received a report that a
decapitated body had been discovered in an area near 5020 Williamsburg Road in
Winston-Salem that was “overgrown with small bushy pines” about “40 to 50 feet to
the west of the asphalt area.” Fingerprint information obtained from the body
established that it was that of Ms. Rodriguez. On 29 May 2013, a human skull, later
determined to be that of Ms. Rodriguez through the use of DNA analysis, was found
in a wooded area near Belews Lake in rural Forsyth County.
According to Patrick Lantz, M.D., who autopsied the body, Ms. Rodriguez was
in the early stages of decomposition at the time that her body was discovered. Dr.
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Lantz observed “maggot activity around the incision on the skin,” incision marks
around her clavicle, and a number of bruises all over her body characteristic of
defensive wounds.” Dr. Lantz opined that “the cause of death was manual
strangulation,” that Ms. Rodriguez had been decapitated after her death, and that,
while there was “not exactly” “a scientific way to determine a postmortem interval,”
he believed, based upon information that he had received from investigating officers
concerning the date upon which Ms. Rodriguez had last been seen alive and the
observations that he had made during the autopsy and at the location at which the
body had been discovered, that Ms. Rodriguez had died on 18 November 2010 and
that the postmortem interval “was consistent with her being out there for three and
a half weeks, or 24 days.”
2. Defendant’s Evidence
Although she acknowledged that a forensic pathologist would be better
qualified than she was to make such a determination, Dr. Ann Ross, a forensic
anthropologist, concluded that Ms. Rodriguez ’s abdominal area showed no signs of
greening, which appears early in the putrefaction process. In addition, Dr. Ross
believed that the crime scene and autopsy photographs suggested that Ms. Rodriguez
“was still in the fresh state” of decomposition at the time that her body was found
given the absence of significant marbling or maggot masses. According to Dr. Ross,
“the remains of the decedent were in a fresh state” and had “not been out in the
environmental conditions before December 1.” Similarly, Thomas L. Bennett, M.D.,
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a forensic pathologist, was of the opinion that “the most probable time frame” “is that
[Ms.] Rodriguez was dead between three and seven days or so prior to her body being
found on December 12th.”
B. Intellectual Disability
1. Defendant’s Life History
Defendant was born on 11 November 1974 in the Usulutan Department of El
Salvador. Defendant and his family left the Usulutan Department “somewhere
between 1979 and 1982” “because of the guerillas, who were the leftist fighters in the
civil war in El Salvador.” Defendant’s family ultimately settled in Anchila, a location
that was believed to be safe, when defendant was a child. However, the guerillas
“began to occupy the area across the river from Anchila” after the Rodriguez family
arrived at that location.
The Rodriguez home in Anchila was a “one-room hut[ ] with dirt floors. The
walls were made out of sticks and mud.” Although the roof was made out of “grass or
tin,” “there[ was] no solid wall” or “security to speak of.” “[D]uring the rainy season,
the floods would flood through the house,” exposing the family “to all kinds of
bacteria, viruses, decaying animals, [and] human waste” from a nearby outhouse.
While in Anchila, defendant “didn’t have access to medical care,” did not
“attend school of any kind,” and experienced “[c]hronic hunger [as] a way of life.”
Upon reaching the age of nine, defendant was sent to live with an aunt in San
Salvador, which was considered to be safer and to have less fighting than Anchila.
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While in San Salvador, defendant began to receive medical care and entered the first
grade. After successfully completing the first grade while failing the second grade,
defendant returned to Anchila to help his family and repeat the second grade when
he was eleven or twelve years old.
At the time that defendant returned to Anchila, “the civil war was very much
raging around the family.” Defendant heard “shooting at night and [remembered]
the family being on the floor in terror.” “It was not uncommon for [the family] to see
dead bodies along the way when they were walking to school” and to “hear bomb[s]
blasting[ ] and shooting.” When defendant was sixteen years old, his older brother,
Jose Fermin, was killed by guerillas after joining the army. Defendant was
responsible for retrieving his brother’s body and bringing it to the family home. While
he was still sixteen and in the seventh grade, defendant dropped out of school.
After Jose Fermin’s death and defendant’s marriage to Ms. Rodriguez,
defendant relocated to the United States. Upon arriving in this country, defendant
was granted asylum on the grounds that he had been “threatened by the guerillas”
and was “[l]iving in constant fear” and received authorization to work. Although
defendant’s son, Fermin, remained in El Salvador with defendant’s father, Ms.
Rodriguez joined defendant in the United States, where the couple had three more
children, Santos Estela, Juan Carlos, Jr., and Jonathan.
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2. Expert Testimony
a. Defendant’s Evidence
Dr. Selena Sermeno, an expert in the field of clinical psychology who
specializes in issues involving El Salvadoran young people, testified that the
“protective and risk factors” present in a child’s life, coupled with “the presence of
chronic violence and trauma and adversity” and “[f]actors such as poverty,
malnutrition, poor health, falls, exposure to trauma, any form of traumatic event,
[and] the presence of fear,” affect the child’s intellectual capabilities. According to
Dr. Sermeno, the civil war that occurred in El Salvador during defendant’s
adolescence had a significant negative effect upon his cognitive development. Among
other things, Dr. Sermeno observed that defendant’s memory and communication
skills were impaired, which is “a very classic symptom in children who are
traumatized to that degree.” Defendant struggled “to recall information in any kind
of chronological sequential or linear format,” was confused by numerical concepts,
and answered questions in a very literal manner. In addition, defendant’s exposure
to dangerous pesticides and contaminated water caused him to suffer from frequent
illnesses, for which he never received proper medical care. Dr. Sermeno believed
that the existence of these adverse environmental conditions had a significant effect
upon defendant’s intellectual development as well.
According to Dr. Sermeno, defendant suffered from post-traumatic stress
disorder and a mild intellectual disability. In support of the second of these two
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diagnoses, Dr. Sermeno pointed to the fact that defendant scored 61 on the third
edition of the Wechsler Adult Intelligence Scale (WAIS-III). In Dr. Sermeno’s view,
defendant had particular difficulties with functional academic learning and
communication skills, with these deficiencies having manifested themselves before
defendant reached the age of eighteen. In addition, Dr. Sermeno’s intellectual
disability diagnosis also rested upon defendant’s exposure to extreme poverty, severe
malnutrition, constant violence, pesticides, educational obstacles, and inadequate
health care. Finally, Dr. Sermeno believed that defendant’s post-traumatic stress
disorder made it difficult for him to express strong emotions through verbal
communication and body language.
Moira Artigues, M.D., a general and forensic psychiatrist, testified that she
had evaluated defendant’s “developmental history and the impact that that may have
had on him, as well as . . . his affect and demeanor, his face and his manner, and to
form opinions about that as well.” Dr. Artigues analyzes whether a person has an
intellectual disability by examining that person’s “background information, in terms
of poverty, malnutrition, deprivation, education resources, and medical resources,”
“[b]ecause lack in any of those can affect intellectual development in children.”
According to Dr. Artigues, severe trauma, like that associated with “growing up in a
civil war, very poor, and malnourished, causes the brain to wire in a way that’s not
optimal, and it can certainly affect your IQ as a result of the faulty wiring.” As a child
in El Salvador, defendant lacked access to medical care, experienced nutritional
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deprivation, and had no educational stimulation until he reached the age of ten, all
of which can affect an individual’s brain development and contribute to the
development of a low intelligence quotient. Moreover, the experience of growing up
during a civil war can result in accumulated trauma over time which can, in turn,
lead to the development of post-traumatic stress disorder. In Dr. Artigues’s view, a
child’s attempts to cope “with this chronic trauma and extreme stress” can affect the
child’s brain development and intelligence quotient.
In Dr. Artigues’s opinion, defendant was mildly intellectually disabled. In
support of this assertion, Dr. Artigues considered the fact that defendant had to make
six different attempts to pass his driver’s license test after reaching the United
States. In addition, Dr. Artiques noted that, while interviewing defendant, he failed
to grasp abstract concepts and had difficulty relaying information in chronological
order, both of which conditions, in Dr. Artigues’s opinion, reflect the existence of an
intellectual disability. Dr. Artigues testified that defendant learned how to be a brick
mason by being shown measurements marked permanently on a yardstick rather
than by utilizing mathematics, with this type of learning limitation being typical of
persons suffering from a mild intellectual disability. According to Dr. Artigues,
intellectually disabled individuals have the ability to drive motor vehicles, work,
marry, and have children. Dr. Artigues believed that defendant’s intellectual
disability manifested itself before he turned eighteen years of age in light of
defendant’s school records, intelligence quotient test scores, the results achieved
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during defendant’s psychological evaluations, and defendant’s exposure to
malnutrition, severe trauma, and poverty. In Dr. Artigues’s view, defendant was
significantly deficient in functional academics and communication skills. Finally, Dr.
Artigues determined that defendant suffered from post-traumatic stress disorder
given that he had been exposed to significant trauma during his life, reported having
had intrusive thoughts about the traumatic events that he had experienced, and
experienced certain specific triggering events.
Dr. Antonio Puente, a clinical neuropsychologist and professor of psychology at
the University of North Carolina at Wilmington, conducted a neuropsychological
evaluation of defendant. Dr. Puente testified that the fact that defendant had a full
scale score of 61 on the Central American, Spanish language version of the WAIS-III
placed defendant in the bottom one percentile of the population. In addition, Dr.
Puente administered the Beta Test, Third Edition; the Comprehensive Test of
Nonverbal Intelligence, Second Edition; and the Bateria Test, Third Edition, to
defendant. According to Dr. Puente, the Beta test was developed to measure the
intellectual abilities of individuals who lack a formal education. Defendant had a
score of 65 on the Beta Test, a result that placed him in the bottom one percent of the
population. Similarly, Dr. Puente testified that defendant’s full-scale score of 53 on
the Comprehensive Test of Nonverbal Intelligence placed him in the bottom
percentile. Although the Bateria test does not produce an intelligence quotient score,
it does generate an intellectual abilities number. Defendant’s intellectual abilities
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score placed him in the second percentile from the bottom. According to Dr. Puente,
mild intellectual disability involves an intelligence quotient of between 50 and 70.
Another sign of mild intellectual disability, in Dr. Puente’s view, is the
presence of only some of the skills that allow an individual to function in society. Dr.
Puente undertook this portion of his analysis by examining defendant’s school
records, driving tests, and the opinions of knowledgeable persons concerning
defendant’s functional capabilities. In addition, Dr. Puente administered sixteen
additional neuropsychological tests to defendant, three of which were used to assess
the reliability of defendant’s responses and the adequacy of defendant’s efforts during
the testing process. According to Dr. Puente, defendant’s test results did not reflect
malingering and accurately demonstrated the extent of defendant’s abilities. As a
result, Dr. Puente testified that defendant has significant sub-average intellectual
functioning; has deficient cognitive, social, and practical skills; and is significantly
impaired in the areas of functional academics and communication skills, with all of
these diagnostic criteria having manifested themselves before defendant attained the
age of eighteen.
b. State’s Evidence
Stephen Kramer, M.D., a forensic neuropsychiatrist and professor of
psychiatry at Wake Forest Baptist Medical Center, testified on behalf of the State
that the El Salvadoran school system, which is much less rigorous than the United
States school system, grades students on a scale from one to ten, with five being the
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lowest passing score. According to Dr. Kramer, most of defendant’s grades were in
the six to seven range, a set of results that is inconsistent with the presence of mild
intellectual disability. In addition, Dr. Kramer noted that defendant could perform
the chores expected of similarly aged children, another fact that suggests that
defendant did not suffer from mild intellectual disability. In a similar vein, Dr.
Kramer noted that defendant had been able to find employment in the United States
that paid more than the minimum wage and that he had been known to “motivate”
his co-workers, with these facts also being inconsistent with a contention that
defendant suffers from a mild intellectual disability. According to Dr. Kramer, other
activities in which defendant engaged, including the payment of taxes, the
maintenance of his immigration status, and his ability to obtain a driver’s license,
“show[ed that defendant had] a level of adaptive functioning beyond that [expected]
for the deficits requisite for a diagnosis of” intellectual disability.
Dr. Kramer testified that Detective Nieves had described defendant’s Spanish
as grammatically correct and that defendant had used an appropriate volume when
speaking with the detective. Dr. Kramer noted that defendant had received a number
of visitors since the date of his incarceration, a fact that tends to suggest that
defendant has a social network and demonstrates his adaptive abilities. Dr. Kramer
considered defendant’s request for a Spanish-to-English dictionary, a Bible, and a
Spanish textbook while in pretrial detention to indicate that defendant has the
apparent ability to read and desired to engage in that activity, with those attributes
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further tending to show that defendant has adaptive capabilities. On the other hand,
Dr. Kramer, like Dr. Artigues, believed that defendant has difficulty understanding
abstract concepts like confidentiality or privacy.
According to Dr. Kramer, Dr. Puente mischaracterized the results of
defendant’s Dot Counting Test, an instrument used to detect malingering, because
defendant “did worse the second time he did the test and was way over the threshold
for suspecting not giving full effort.” Dr. Kramer noted that defendant was “overtly
cooperative,” had a normal mood range, spoke Spanish in a clear and distinct manner
while exhibiting a regular rate and rhythm, and had no difficulty with the
comprehension portion of the exam. In addition, while defendant could not identify
the year, month, day of the week, or season, he was able to perform complex
commands without difficulty. The fact that defendant could not name the months of
the year was “astonishing” to Dr. Kramer given his belief that even a person with
mild intellectual disability should be able to perform that task.
Dr. Kramer administered a variety of tests for the purpose of assessing
defendant’s mathematical abilities, visual and verbal memory, neurological
functioning, and motor skills. According to Dr. Kramer, defendant’s math skills were
“horrible” and included “very bizarre” responses. While completing a “literal
cancellation test,” which required defendant to find all of the As on a page while
subject to certain time constraints, defendant missed some As and worked very
slowly, with the physical restraints to which defendant was subject and visual deficits
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which defendant experienced accounting for this aspect of his performance. Dr.
Kramer determined that defendant has a score of less than one on the National
Stressful Events Survey PTSD Short Scale Test, which indicated, according to Dr.
Kramer, that the severity of defendant’s reaction to stress was, at most, mild. Even
so, Dr. Kramer diagnosed defendant as suffering from dysthymic disorder, which is a
form of chronic depression, and post-traumatic stress disorder.
Dr. Kramer questioned whether defendant exhibited symptoms of significant
sub-average intellectual functioning. Although the fact that defendant had lived in
severe poverty and suffered from malnutrition might adversely affect his intelligence
quotient scores, those factors do not appear to have actually impaired his intellectual
capacity. In addition, Dr. Kramer testified that defendant’s “school grades were not
consistent with [those of] someone with mild intellectual disability.” According to Dr.
Kramer, defendant’s only adaptive functioning deficiency involved functional
academics. As a result, for all of these reasons, Dr. Kramer disagreed with Dr.
Puente’s diagnosis that defendant suffered from an intellectual disability.
c. Defendant’s Rebuttal Evidence
Dr. John Olley, a professor at the University of North Carolina at Chapel Hill
and a psychologist at the Carolina Institute for Developmental Disabilities, testified
that, since a person with an intelligence quotient of between 55 and 70 can
appropriately be diagnosed as mildly intellectually disabled and since defendant had
a score of 61 on the WAIS-III, his intelligence quotient falls within the mildly
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intellectually disabled range. In Dr. Olley’s view, approximately one-third of mildly
intellectually disabled persons are able to obtain a driver’s license or learner’s permit.
Dr. Olley asserted that “a person’s accomplishments” cannot “rule out” the existence
of an intellectual disability given that such a “diagnosis is based on identifying
deficits, not identifying strengths,” and revolves around “a pattern of lifelong
limitations.” In addition, Dr. Olley stated that the American Association of
Intellectual and Development Disabilities (AAIDD), which was formerly known as
the American Association of Mental Retardation, believes that socioeconomic factors,
such as malnutrition, poverty, and lack of access to early childhood education, are
“causative or at least high-risk factors in the diagnosis of” intellectual disabilities.
According to Dr. Olley, the AAIDD attributes intellectual disabilities to biological,
behavioral, social, and educational factors, with the biological factor being present in
only the more severe cases of intellectual disabilities and with the other factors
contributing to less severe cases. In Dr. Olley’s view, poverty can contribute to a
diagnosis of intellectual disability.
3. Capital Sentencing
a. State’s Evidence
According to Lieutenant Tollie, the Rodriguez children had initially been
placed in foster care before going to live with Ms. Rodriguez ’s father, who resides in
Boston. Friends Anna and Merlyn Rodriguez described Ms. Rodriguez as a very
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loving and caring mother who took good care of her children and had been excited to
begin a new job at McDonald’s.
b. Defendant’s Evidence
Defendant had not been cited for any disciplinary infractions during the period
of time in which he was held in pretrial confinement. Defendant’s father, Manuel
Romero, who was handicapped, loves his son very much and needs his financial
support. Similarly, defendant’s sister, Ana Julia Romero, testified that she loves her
brother very much, that defendant denied having done anything to Ms. Rodriguez,
and that Ms. Rodriguez was a very nice person who loved defendant and had been a
good wife. Juan Carlos Rodriguez and Estela Santos Rodriguez expressed the desire
to continue to have a relationship with their father, stated that they loved and missed
him, and described Ms. Rodriguez as a loving mother.
B. Procedural History
On 2 July 2012, the Forsyth County grand jury returned a bill of indictment
charging defendant with assault with a deadly weapon inflicting serious injury and
first-degree kidnapping. On 16 July 2012, the Forsyth County grand jury returned
superseding indictments charging defendant with first-degree murder, assault with
a deadly weapon inflicting serious injury, and first-degree kidnapping. The charges
against defendant came on for trial before the trial court and a jury at the 3 February
2014 criminal session of the Superior Court, Forsyth County.
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On 10 March 2014, the jury returned verdicts finding defendant guilty of first-
degree murder on the basis of malice, premeditation, and deliberation and the felony
murder rule using first-degree kidnapping as the predicate felony, assault with a
deadly weapon inflicting serious injury, and first-degree kidnapping. After accepting
the jury’s verdict, the trial court convened a separate proceeding for the purpose of
determining whether defendant is intellectually disabled as that term is currently
used in N.C.G.S. § 15A-2005. On 14 March 2014, the jury returned a verdict finding
that defendant was not exempt from the imposition of the death penalty based upon
intellectual disability-related grounds. On 17 March 2014, defendant unsuccessfully
moved to set aside the jury verdict with respect to the intellectual disability issue.
On the same day, the sentencing phase of defendant’s trial commenced.
On 21 March 2014, the jury returned a verdict determining that defendant had
killed Ms. Rodriguez while engaged in the commission of a first-degree kidnapping.
The jury did not find as mitigating circumstances that defendant lacked a significant
history of prior criminal conduct, N.C.G.S. § 15A-2000(f)(1), or that defendant had
murdered Ms. Rodriguez while under the influence of a mental or emotional
disturbance, id. § 15A-2000(f)(2). In addition, the jury rejected all proposed
nonstatutory mitigating circumstances and found that no other mitigating
circumstances existed, id. 15A-2000(f)(9). Finally, the jury found that the
aggravating circumstance was sufficiently substantial to call for the imposition of the
death penalty. Based upon the jury’s verdicts, the trial court arrested judgment with
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respect to defendant’s first-degree kidnapping conviction and entered judgments
sentencing defendant to death based upon his first-degree murder conviction and to
a concurrent term of twenty-five to thirty-nine months imprisonment based upon his
conviction for assault with a deadly weapon inflicting serious injury. Defendant
noted an appeal to this Court from the trial court’s judgments.3
II. Legal Analysis
A. Jury Selection
In his initial challenge to the trial court’s judgments, defendant contends that
the trial court deprived him of his state and federal constitutional right to a trial by
a fair and impartial jury by prohibiting his trial counsel from questioning prospective
jurors concerning their ability to follow the applicable law prohibiting the imposition
of the death penalty upon an intellectually disabled person. More specifically,
defendant contends that “[i]t was critically important that each juror be free of any
bias regarding the exemption of [intellectually disabled] offenders from capital
punishment that would prevent that juror from deciding the question of [intellectual
disability] based on the clinical evidence in accordance with § 15A-2005,” which
provides that “no defendant who is [intellectually disabled] shall be sentenced to
death.” N.C.G.S. § 15A-2005 (2014). According to defendant, the jurors empaneled
3 The record does not reflect that defendant filed a motion to bypass the Court of
Appeals with respect to the trial court’s judgment in the case in which defendant was
convicted of and sentenced for assault with a deadly weapon inflicting serious injury. We
grant a motion to bypass the Court of Appeals in that case on our own motion.
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Opinion of the Court
to hear and decide this case “were not made aware until the sentencing phase that
they would need to make a determination of [intellectual disability] that could take
the death penalty off the table” or questioned concerning their ability to follow the
law governing the extent to which an intellectually disabled person is eligible for the
imposition of the death penalty in violation of defendant’s Sixth Amendment right “to
ascertain whether the juror has any bias, opinion, or prejudice that would affect or
control the fair determination by him of the issues to be tried,” quoting Conners v.
United States, 158 U.S. 408, 413, 15 S. Ct. 951, 953, 39 L. Ed. 1033, 1035 (1895), and
citing Morgan v. Illinois, 504 U.S. 719, 727, 112 S. Ct. 2222, 2228-29, 119 L. Ed. 2d
494, 502 (1992).
The State contends, on the other hand, that the trial court did not abuse its
discretion during the jury selection process by sustaining the State’s objection to
defendant’s attempts to question prospective jurors concerning intellectual disability
issues. Contrary to defendant’s assertions, the trial court simply prohibited
defendant from prefacing the questions that he sought to pose to prospective jurors
concerning intellectual disability issues with general legal statements. In addition,
the State contends that defendant was able to elicit the information that he sought
to obtain by posing these questions based upon prospective jurors’ answers to other
questions that the trial court allowed defendant to pursue and statements that the
trial court allowed defendant’s trial counsel to make. Finally, the State notes that
the trial court properly instructed the jury concerning the effect of a finding of
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Opinion of the Court
intellectual disability upon the jury’s ability to make a binding recommendation that
defendant be sentenced to death at an appropriate point in the proceedings.
During the jury selection process, defendant’s trial counsel told the trial court
that defendant’s “intent was to ask these jurors can they follow the law with regard
to mental retardation” and that, in order to make an adequate inquiry into this
subject, he would be required “to tell them a little bit about what the law is.” In
response, the trial judge stated that defendant would be allowed to inquire into jurors’
ability to follow the applicable law and stated:
THE COURT: Just don’t give editorial
comments. I certainly understand you’re going to be
entitled—you can preface it as, “There may be a defense or
evidence of alleged mental retardation in this case. Will
you be able to fairly consider it in this case?”
Is that—does that not get you what you want? . . .
[DEFENSE COUNSEL]: It does. What I would like
to say is that North Carolina does not allow . . . . for a
defendant to get the death penalty if they’re mentally
retarded; does anybody on the panel have any issues with
that law.
....
THE COURT: Does the State object to that line
of questioning?
[PROSECUTOR]: Yes, Your Honor. We object to
him prefacing it with what the state of the law is until the
jury is instructed. . . . Because we would contend it’s going
to be in dispute.
....
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Opinion of the Court
THE COURT: When we get to the jury
instructions, I’ll give them the law that applies to this
particular case. You’re going to be entitled to ask questions
about any –
[DEFENSE COUNSEL]: And mental retardation is
not a mitigating circumstance that decides, yes or no, death
penalty. That’s the weighing part of it. I don’t want the
jury confused that this is just another mitigating
circumstance. It’s the law that they have to first decide
before they even get to that [procedure.]
THE COURT: I’m not inclined –
....
THE COURT: — to allow the defendant just to
state general propositions of the law. You’re absolutely
going to be entitled to ask jurors questions, as we’ve
already discussed, with regard to any alleged mental
retardation evidence. . . .
....
THE COURT: . . . You can ask them if they can
follow the law that the Court will give you with regard to
mental retardation and the effect it may have as to any
decisions in the case. “Can you follow the law fairly and
impartially that the Judge will give you with regard to the
law on mental retardation?”
. . . But I’ve told everybody that neither attorney
should question the jurors about the law except to ask
whether they will follow the law as given to you by the
Court.
After the prospective jurors returned to the courtroom at the conclusion of this
colloquy between the trial court and counsel for the parties, defendant’s trial counsel
stated, without objection, that “[m]ental retardation is a defense to the death penalty”
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Opinion of the Court
and that “[m]ental retardation is defined, among other things, as having a low IQ”
and, along with the prosecutor, asked prospective jurors numerous questions related
to intellectual disability issues.
“The primary goal of the jury selection process is to ensure selection of a jury
comprised only of persons who will render a fair and impartial verdict.” State v.
Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992) (citation omitted). “Pursuant
to N.C.G.S. § 15A-1214(c), counsel may question prospective jurors concerning their
fitness or competency to serve as jurors to determine whether there is a basis to
challenge for cause or whether to exercise a peremptory challenge.” State v.
Fullwood, 343 N.C. 725, 732, 472 S.E.2d 883, 886-87 (1996) (citing N.C.G.S. § 15A-
1214(c) (1988), cert. denied, 520 U.S. 1122, 117 S. Ct. 1260, 137 L. Ed. 2d 339 (1997)).
As part of the jury selection process, the trial court must allow counsel an opportunity
“to inquire into the ability of the prospective jurors to follow the law,” with “questions
designed to measure prospective jurors’ ability to follow the law [being] within the
[proper] context of voir dire.” State v. Wiley, 355 N.C. 592, 617, 565 S.E.2d 22, 40
(2002), cert. denied, 537 U.S. 1117, 123 S. Ct. 882, 154 L. Ed. 2d 795 (2003). On the
other hand, “[t]he trial judge has broad discretion to regulate jury voir dire.”
Fullwood, 343 N.C. at 732, 472 S.E.2d at 887 (citing State v. Lee, 335 N.C. 244, 268,
439 S.E.2d 547, 559, cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162
(1994)); see also State v. Locklear, 349 N.C. 118, 142, 505 S.E.2d 277, 291 (1998)
(explaining that “the extent and manner of the inquiry [allowed to counsel] rests
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Opinion of the Court
within the trial court’s discretion”), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143
L. Ed. 2d 559 (1999). “In order for a defendant to show reversible error in the trial
court’s regulation of jury selection, a defendant must show that the court abused its
discretion and that he was prejudiced thereby.” Lee, 335 N.C. at 268, 439 S.E.2d at
559 (citations omitted). As a result, “the trial court’s exercise of discretion in
preventing a defendant from pursuing a relevant line of questioning” must “render[ ]
the trial fundamentally unfair” in order for the defendant to be entitled to obtain
relief on appeal to this Court. Fullwood, 343 N.C. at 732-33, 472 S.E.2d at 887 (citing,
inter alia, Morgan, 504 U.S. at 730 n.5, 112 S. Ct. at 2230 n.5, 119 L. Ed. 2d at 503
n.5).
Although the trial court did inform defendant’s trial counsel that they should
limit their questioning of prospective jurors with respect to intellectual disability
issues to inquiring whether the members of the jury “can follow the law as given to
you by the Court,” defendant was allowed, without any objection from the State, to
explain to two different jury panels at a time when all of the prospective jurors were
present that “[m]ental retardation is a defense to the death penalty.” In addition,
defendant’s trial counsel asked prospective jurors about their prior experiences with
intellectually disabled individuals, the extent of their familiarity with intelligence
testing and adaptive skills functioning issues, their willingness to consider expert
mental health testimony, and their willingness to follow the applicable law as
embodied in the trial court’s instructions. When considered in conjunction with the
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Opinion of the Court
fact that defendant’s trial counsel was allowed to tell the prospective jurors that
“[m]ental retardation is a defense to the death penalty” and the common sense
understanding of a “defense” as something that precludes a finding of guilt or the
imposition of a particular punishment, the questions that defendant’s trial counsel
were allowed to pose to prospective jurors concerning their ability to follow the law
with respect to the intellectual disability issue sufficed to permit defendant’s trial
counsel to determine whether specific jurors could fairly consider and follow the trial
court’s instructions concerning the issue of whether defendant should be exempted
from the imposition of the death penalty on the basis of any intellectual disabilities
from which he suffered. On the other hand, the specific question that defendant
sought permission to pose to prospective jurors would have done little more than elicit
the prospective jurors’ opinions concerning the validity of the undisputed legal
principle barring the imposition of the death penalty upon intellectually disabled
individuals. As a result, we do not believe that the limitations that the trial court
placed upon the ability of defendant’s trial counsel to question prospective jurors
concerning intellectual disability issues constituted an abuse of discretion or
“render[ed] the trial fundamentally unfair.” Fullwood, 343 N.C. at 732-33, 472 S.E.2d
at 887.
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Opinion of the Court
B. Guilt-Innocence Proceeding Issues
1. Sufficiency of the Evidence
Secondly, defendant contends that the trial court erred by denying his motion
to dismiss the first-degree murder charge that had been lodged against him because
the State failed to present sufficient evidence to establish his identity as the
perpetrator of Ms. Rodriguez’s murder. In support of this contention, defendant
asserts that, when a State’s case is wholly dependent upon circumstantial evidence,
reviewing courts examine the record evidence for “proof of motive, opportunity,
capability, and identity” in order “to show that a particular person committed a
particular crime,” quoting State v. Bell, 65 N.C App. 234, 238, 309 S.E.2d 464, 467
(1983), aff’d, 311 N.C. 299, 316 S.E.2d 72 (1984). Although defendant acknowledges
that the record contains sufficient evidence to permit a rational juror to find that he
had the capability and motive to commit first-degree murder, he contends that the
State failed to elicit sufficient evidence to establish the necessary opportunity and
identity. More specifically, defendant points to the expert testimony contained in the
record suggesting that Ms. Rodriguez died much later than 18 November 2010 and
argues that “the State lacked any eyewitness testimony or physical evidence
establishing where and when the homicide occurred,” with such evidence being
“critical to establishing opportunity,” citing State v. Scott, 296 N.C. 519, 522, 251
S.E.2d 414, 416-17 (1979). In response, the State contends that the evidence more
than sufficed to establish that defendant murdered Ms. Rodriguez, with defendant’s
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Opinion of the Court
argument resting upon an interpretation of the evidence that is favorable to himself
rather than to the State.
“In ruling on a motion to dismiss, the trial court need determine only whether
there is substantial evidence of each essential element of the crime and that the
defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518
(1998) (citation omitted). “Substantial evidence is that amount of relevant evidence
necessary to persuade a rational juror to accept a conclusion.” State v. Mann, 355
N.C. 294, 301, 560 S.E.2d 776, 781 (citation omitted), cert. denied, 537 U.S. 1005, 123
S. Ct. 495, 154 L. Ed. 2d 403 (2002). “As to whether substantial evidence exists, the
question for the trial court is not one of weight, but of the sufficiency of the evidence.”
Id. at 301, 560 S.E.2d at 781.
The evidence is to be considered in the light most
favorable to the State; the State is entitled to every
reasonable intendment and every reasonable inference to
be drawn therefrom; contradictions and discrepancies are
for the jury to resolve and do not warrant dismissal; and
all of the evidence actually admitted, whether competent
or incompetent, which is favorable to the State is to be
considered by the court in ruling on the motion.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citations omitted). On
the other hand, in the event that the evidence merely raises “a suspicion or conjecture
as to either the commission of the offense or the identity of the defendant as the
perpetrator, the motion to dismiss must be allowed.” State v. Malloy, 309 N.C. 176,
179, 305 S.E.2d 718, 720 (1983) (citations omitted). “Circumstantial evidence may
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Opinion of the Court
withstand a motion to dismiss and support a conviction even when the evidence does
not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373
S.E.2d 430, 433 (1988).
First-degree murder “is the unlawful killing of another human being with
malice and with premeditation and deliberation.” State v. Bonney, 329 N.C. 61, 77,
405 S.E.2d 145, 154 (1991). “Premeditation and deliberation ‘are not ordinarily
subject to proof by direct evidence, but must generally be proved . . . by circumstantial
evidence.’ ” State v. Taylor, 337 N.C. 597, 607, 447 S.E.2d 360, 367 (1994) (alteration
in original) (quoting State v. Williams, 308 N.C. 47, 68-69, 301 S.E.2d 335, 349, cert.
denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 177 (1983)).4 “Circumstances
tending to prove that the killing was premeditated and deliberate include, but are
not limited to:
(1) want of provocation on the part of the deceased; (2) the
conduct and statements of the defendant before and after
the killing; (3) threats and declarations of the defendant
before and during the course of the occurrence giving rise
to the death of the deceased; (4) ill-will or previous
difficulty between the parties; (5) the dealing of lethal
blows after the deceased has been felled and rendered
helpless; and (6) evidence that the killing was done in a
brutal manner.
Id. at 607, 447 S.E.2d at 367 (quoting Williams, 308 N.C. at 69, 301 S.E.2d at 349);
see also State v. Trull, 349 N.C. 428, 448, 509 S.E.2d 178, 192 (1998) (concluding that
4In February 2010, a three-judge panel of the North Carolina Innocence Commission
unanimously ruled that Taylor had been wrongly convicted in 1993.
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Opinion of the Court
the defendant’s actions in destroying evidence and attempting to cover up his
involvement in the murder “permit the inference that defendant acted with
premeditation and deliberation”), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed.
2d 80 (1999); State v. Scott, 343 N.C. 313, 341, 471 S.E.2d 605, 622 (1996) (concluding
that evidence tending to show, among other things, that the “[d]efendant lied to
everyone about [the decedent’s] whereabouts and did not call the police or emergency
medical personnel” “was sufficient to show premeditation and deliberation”); State v.
Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991) (concluding that evidence
that the defendant strangled the victim sufficed to show premeditation and
deliberation).
The evidence elicited by the State at trial tended to show that defendant had
a history of abusing Ms. Rodriguez, that defendant had threatened to kill Ms.
Rodriguez and to dispose of her body, that defendant violently attacked Ms.
Rodriguez on 18 November 2010, that defendant was the last person to see Ms.
Rodriguez alive, that defendant had been seen in the general area in which Ms.
Rodriguez’s body had been discovered, that defendant had attempted to clean up the
location at which he assaulted Ms. Rodriguez, that defendant sent text messages from
Ms. Rodriguez’s phone to Merlyn Rodriguez in an attempt to establish that Ms.
Rodriguez had voluntarily left the area, that Ms. Rodriguez’s clothing and blood were
found in defendant’s vehicle, that defendant made conflicting statements concerning
the circumstances surrounding Ms. Rodriguez’s disappearance to various people, and
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Opinion of the Court
that the autopsy performed upon Ms. Rodriguez’s body indicated, consistently with
other evidence tending to show that blood was emanating from Ms. Rodriguez ’s nose
as Mr. Rodriguez carried her away, that Ms. Rodriguez had aspirated blood prior to
her death. Aside from the fact that the evidence contains ample support for the
State’s contention that defendant caused Ms. Rodriguez’s death, “[t]hese facts permit
the inference that defendant acted with premeditation and deliberation.” Trull, 349
N.C. at 448, 509 S.E.2d at 192. As a result, the trial court did not err by denying
defendant’s motion to dismiss the first-degree murder charge for insufficiency of the
evidence.
2. Admission of Evidence Concerning Dr. Kramer’s Former Employment
Thirdly, defendant contends that the trial court erred by allowing the State to
elicit, over objection, evidence that one of defendant’s trial counsel had previously
hired Dr. Kramer to testify on behalf of another client. In defendant’s view, “[t]he
State improperly vouched for Dr. Kramer’s credibility by eliciting testimony that Dr.
Kramer had been hired by Robert Campbell, one of Mr. Rodriguez’s attorneys, to
testify on behalf of a criminal defense client in another case and in highlighting the
prior employment in its closing argument,” with this error having been particularly
prejudicial given that the State’s opposition to defendant’s claim to be exempt from
the imposition of the death penalty on intellectual disability grounds rested solely
upon the credibility of Dr. Kramer’s opinion that defendant was not intellectually
disabled. In response to defendant’s assertion, the State contends that the challenged
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Opinion of the Court
testimony was relevant to the issue of Dr. Kramer’s lack of bias and that the trial
court did not err by allowing its admission.
When conducting a cross-examination, a prosecutor may not “inject into
questions ‘his own knowledge, beliefs, and personal opinions not supported by the
evidence.’ ” State v. Sanderson, 336 N.C. 1, 14, 442 S.E.2d 33, 41 (1994) (quoting
State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291 (1975)); see also State v. Phillips,
240 N.C. 516, 527, 82 S.E.2d 762, 770 (1954) (opining that prosecuting attorneys
cannot “place before the jury by argument, insinuating questions, or other means,
incompetent and prejudicial matters not legally admissible in evidence”). A
prosecutor does not improperly vouch for the credibility of a State’s witness, or
otherwise “inject” “his own knowledge, beliefs, and personal opinions” into
questioning, Sanderson, 336 N.C. at 14, 442 S.E.2d at 41, by merely explaining why
the jury should find a State’s witness to be credible. State v. Bunning, 338 N.C. 483,
488-89, 450 S.E.2d 462, 464 (1994). “A witness may be [questioned concerning] any
matter relevant to any issue in the case, including credibility.” State v. Lewis, 365
N.C. 488, 494, 724 S.E.2d 492, 497 (2012) (quoting N.C.G.S. § 8C-1, Rule 611(b)
(2011)). “We have long held that evidence of bias is logically relevant to a witness’
credibility . . . .” Id. at 494, 724 S.E.2d 497; see also State v. Atkins, 349 N.C. 62, 83,
505 S.E.2d 97, 110 (1998) (concluding that “the State appropriately attempted to
illustrate a potential source of witness bias, as revealed by the expert witness’s own
curriculum vitae”), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036
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Opinion of the Court
(1999). If the record at trial “reveals significant discrepancies between the diagnosis
made by defendant’s . . . expert and the diagnosis reached by the State’s expert,” “it
[is] entirely proper to elicit testimony indicative of potential witness bias.” Atkins,
349 N.C. at 83, 505 S.E.2d at 111. A prosecutor’s decision to elicit evidence tending
to show a lack of bias on the part of a State’s witness does not constitute
impermissible prosecutorial vouching. See Bunning, 338 N.C. at 489, 450 S.E.2d at
464 (concluding that “statements by the prosecuting attorney were more in the nature
of giving reason why the jury should believe the State’s evidence than that the
prosecuting attorney was vouching for the credibility of the State’s witnesses or for
his own credibility”).
As we have already noted, Dr. Kramer testified that he disagreed with Dr.
Puente’s determination that defendant suffers from a mild intellectual disability. In
view of the “significant discrepancies between the diagnosis made by defendant’s . . .
expert and the diagnosis reached by the State’s expert,” “it [is] entirely proper to elicit
testimony indicative of potential witness bias,” or the lack thereof. Atkins, 349 N.C.
at 83, 505 S.E.2d at 111. The prosecutor’s decision to elicit evidence to the effect that
Dr. Kramer had previously performed work for one of defendant’s trial counsel did
not “inject” the prosecutor’s personal opinions into defendant’s intellectual
capabilities. On the contrary, the evidence elicited in response to the relevant
prosecutorial questions tended to show a lack of bias on the part of Dr. Kramer by
demonstrating that he had previously worked on behalf of both the State and criminal
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Opinion of the Court
defendants. Although the trial court might have been better advised to have
exercised its discretionary authority pursuant to N.C.G.S. § 8C-1, Rule 403, to limit
the scope of the prosecutor’s inquiry to whether Dr. Kramer had previously worked
for counsel representing criminal defendants in general rather than specifically
identifying one of defendant’s trial counsel as an attorney to whom Dr. Kramer had
provided expert assistance, we are unable to say, given the record before us in this
case, that the challenged testimony constituted impermissible prosecutorial vouching
for Dr. Kramer’s credibility or that the trial court erred by refusing to preclude the
admission of the challenged testimony.
C. Intellectual Disability Proceeding
Next, defendant contends that he demonstrated that he suffers from an
intellectual disability by a preponderance of the evidence and that the trial court
erred by denying his motion to set aside the jury’s verdict in the State’s favor with
respect to this issue. As defendant notes, he was required to prove that he had
“significantly subaverage general intellectual functioning” and “significant
limitations in adaptive functioning” that “was manifested before the age of 18,”
quoting N.C.G.S. § 15A-2005(a)(2), by a preponderance of the evidence in order to be
found to be exempt from the imposition of the death penalty upon intellectual
disability grounds, citing id. § 15A-2005(f). Defendant claims to have satisfied his
burden of proof with respect to this issue given that three of his intelligence quotient
scores were below 70, that three separate expert witnesses testified that he had
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Opinion of the Court
significant limitations in at least two of the statutorily enumerated areas of adaptive
functioning, and that each of defendant’s experts testified that defendant’s mild
intellectual disability manifested itself before he reached the age of eighteen.
According to defendant, the State’s expert did little more than challenge the evidence
tending to show that defendant exhibited subaverage intellectual functioning as
“questionable” and agreed that defendant had an adaptive deficit in the area of
functional academics. In response, the State contends that a reviewing court should
not disturb a jury determination with respect to the issue of intellectual disability in
the event that there is any competent evidence reasonably tending to support it and
that the record provided ample support for the jury’s determination that defendant
had failed to establish that he should be exempt from the imposition of the death
penalty on intellectual disability grounds.
A trial court’s ruling with respect to a motion to set aside a jury verdict “will
not be disturbed on appeal absent an abuse of discretion.” State v. Batts, 303 N.C.
155, 162, 277 S.E.2d 385, 389 (1981) (citations omitted) (upholding the denial of a
motion to set aside a verdict after finding that “[t]here was sufficient evidence to
warrant submission of the case to the jury and to support its verdict”). According to
well-established North Carolina law, “[t]he credibility of the witnesses, the weight of
the testimony, and conflicts in the evidence are matters for the jury to consider and
pass upon,” State v. Alford, 329 N.C. 755, 761, 407 S.E.2d 519, 524 (1991) (citations
omitted), with the reviewing court lacking any responsibility for “pass[ing] on the
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Opinion of the Court
credibility of witnesses or to weigh[ing] the testimony,” State v. Hanes, 268 N.C 335,
339, 150 S.E.2d 489, 492 (1966). Defendant’s assertion that we should conduct a de
novo review of the trial court’s decision to refrain from setting aside the jury’s verdict
with respect to the intellectual disability issue amounts to a request that we reweigh
the evidence and make our own factual findings on appeal, a task for which an
appellate court like this one is not well suited. Although defendant did present
sufficient evidence to support a determination that he should be deemed exempt from
the imposition of the death penalty on intellectual disability grounds, the State
presented expert testimony from Dr. Kramer tending to support a contrary
determination. The relative credibility of the testimony offered by the various expert
witnesses concerning the nature and extent of defendant’s intellectual limitations
was a matter for the jury rather than for this Court, particularly given that the
burden of proof with respect to the intellectual disability issue rested upon defendant.
In light of the fact that the record reveals the existence of a conflict in the evidence
concerning the extent to which defendant was intellectually disabled for purposes of
N.C.G.S. § 15A-2005, we are unable to conclude that the trial court abused its
discretion by failing to set aside the jury’s verdict in the State’s favor with respect to
that issue.5
5 In his supplemental brief, defendant contends that he is entitled to relief from the
trial court’s intellectual disability determination on the basis of the United States Supreme
Court’s decision in Moore v. Texas, ___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017). In
support of this contention, defendant reiterates his argument, which we have already
rejected, that this Court is required to undertake a de novo review of the merits of the
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Opinion of the Court
D. Capital Sentencing Proceeding
Finally, defendant asserts that the trial court erred at defendant’s capital
sentencing proceeding by failing to instruct the jury with respect to the statutory
mitigating factor enumerated in N.C.G.S. § 15A-2000(f)(6), which addresses the
extent to which defendant’s capacity to appreciate the criminality of his conduct or to
conform his conduct to the law was impaired. According to defendant, the trial court
must instruct the jury concerning whether a particular mitigating circumstance
exists in the event that the record contains sufficient evidence to establish the
existence of that mitigating circumstance, citing State v. Hurst, 360 N.C. 181, 197,
624 S.E.2d 309, 322, cert. denied, 549 U.S. 875, 127 S. Ct. 186, 166 L. Ed. 2d 131
(2006). According to defendant, the record contained ample evidence tending to show
that that defendant’s “capacity . . . to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired,” quoting N.C.G.S. §
15A-2000(f)(6), with the jury being entitled to find the existence of the statutory
mitigating circumstance enumerated in N.C.G.S. § 15A-2000(f)(6) “even if a
intellectual disability issue and contends that a portion of the evidence that the State elicited
and the arguments that the State advanced during the intellectual disability proceeding
conflict with the logic that the United States Supreme Court utilized in Moore. However,
given defendant’s failure to bring a challenge to the admission of the challenged evidence or
the making of the challenged arguments forward for our consideration and defendant’s
failure to contend that the trial court’s intellectual disability instructions conflicted with
Moore in any way, we are not persuaded that defendant’s Moore-based arguments are
properly before us or that Moore has any bearing on the intellectual disability issue that
defendant has actually raised, which is whether the trial court abused its discretion by
refusing to set the jury’s verdict with respect to the intellectual disability issue aside.
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Opinion of the Court
defendant has capacity to know right from wrong, to know that the act he committed
was wrong, and to the know the nature and quality of the act,” quoting State v.
Johnson, 298 N.C. 47, 68, 257 S.E.2d 597, 613 (1979). More specifically, defendant
contends that the record contains substantial evidence tending to show that
defendant is intellectually disabled and suffers from post-traumatic stress disorder
or another mental condition and that defendant killed Ms. Rodriguez in the course of
a marital crisis characterized by emotional turmoil. Defendant asserts that “[t]he
combination of subnormal intelligence, psychological disorders, and/or a breakdown
in a relationship has often been held to support submission of both the (f)(2) and the
(f)(6) statutory mitigating circumstances,” citing, inter alia, State v. Fullwood, 329
N.C. 233, 404 S.E.2d 842 (1991) (concluding that the record contained substantial
evidence tending to show the existence of the (f)(6) statutory mitigating circumstance
given that an expert psychologist had testified that defendant had limited verbal
abilities and suffered from low self-esteem); State v. Huff, 325 N.C. 1, 381 S.E.2d 635
(1989), vacated, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), on remand,
328 N.C. 532, 402 S.E.2d 577 (1991) (concluding that the record contained sufficient
evidence to support the submission of the (f)(6) statutory mitigating circumstance
given that the defendant exhibited symptoms of paranoid schizophrenia and
delusional thinking); State v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983) (holding
that the record contained sufficient evidence to support the submission of the (f)(6)
statutory mitigating circumstance given the presence of evidence tending to show
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Opinion of the Court
that the defendant had an intelligence quotient of 63, poor reading skills, an
antisocial disorder, and a history of mental health problems).
In seeking to persuade us to reach a different result, the State argues that this
Court has noted that the (f)(6) statutory mitigating circumstance
has only been found to be supported in cases where there
was evidence, expert or lay, of some mental disorder,
disease, or defect, or voluntary intoxication by alcohol or
narcotic drugs, to the degree that it affected the
defendant’s ability to understand and control his actions.
State v. Kemmerlin, 356 N.C. 446, 479, 481, 573 S.E.2d 870, 893, 894 (2002)
(concluding the trial court did not err by failing to submit the (f)(6) statutory
mitigating circumstance even though a defense mental health expert diagnosed
defendant with borderline personality disorder and major depressive disorder on the
grounds that the expert also testified that these conditions “did not prevent defendant
from appreciating the criminality of her conduct and controlling her conduct as
required by law”). Moreover, the State asserts that this Court has concluded that a
defendant’s conduct in the time leading up to and following the murder “may
demonstrate that he was aware that his acts were criminal.” State v. Polke, 361 N.C.
65, 72, 638 S.E.2d 189, 194 (2006), cert. denied, 552 U.S. 836, 128 S. Ct. 70, 169 L.
Ed. 2d 55 (2007). Although the record did contain evidence tending to show that
defendant has subaverage intellectual functioning, suffers from post-traumatic stress
disorder and chronic depression, and was in the midst of a marital crisis, the State
argues that the record was devoid of any evidence that these conditions impaired his
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Opinion of the Court
capacity “to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law,” quoting N.C.G.S. § 15A-2000(f)(6), at the time that he murdered
Ms. Rodriguez. On the contrary, according to the State, the evidence concerning
defendant’s conduct before and after the murder of Ms. Rodriguez demonstrated
defendant’s awareness that “his acts were criminal,” quoting Polke, 361 N.C. at 72,
638 S.E.2d at 194. Finally, the State contends that any error that the trial court
might have committed by failing to instruct the jury concerning the (f)(6) statutory
mitigating circumstance was harmless given that “any such error did not prevent any
juror from considering and giving weight to the mitigating evidence,” quoting State
v. Ward, 338 N.C. 64, 113, 449 S.E.2d 709, 736-37 (1994), cert. denied, 514 U.S. 1134,
115 S. Ct. 2014, 131 L. Ed. 2d 1013 (1995).
According to N.C.G.S. § 15A-2000(b), a trial judge is required to instruct the
jury to consider any aggravating or mitigating circumstances which have adequate
evidentiary support. N.C.G.S. § 15A-2000(b) (2017). For that reason, “a trial court
has no discretion in determining whether to submit a mitigating circumstance when
‘substantial evidence’ in support of the circumstance has been presented.” State v.
Watts, 357 N.C. 366, 377, 584 S.E.2d 740, 748 (2003) (quoting State v. Fletcher, 354
N.C. 455, 477, 555 S.E.2d 534, 547 (2001), cert. denied, 537 U.S. 846, 123 S. Ct. 184,
154 L. Ed. 2d 73 (2002)), cert. denied, 541 U.S. 944, 124 S. Ct. 1673, 158 L. Ed. 2d 370
(2004); see also State v. Williams, 350 N.C. 1, 10-11, 510 S.E.2d 626, 633 (explaining
that “the trial court has no discretion” and that “the statutory mitigating
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Opinion of the Court
circumstance must be submitted to the jury, without regard to the wishes of the State
or the defendant,” if the “evidence will support a rational jury finding” concerning the
existence of the mitigating circumstance) (quoting State v. Smith, 347 N.C. 453,
469,496 S.E.2d 357, 366, cert. denied, 525 U.S. 845, 119 S. Ct. 113, 142 L. Ed. 2d 91
(1998)), cert. denied, 528 U.S. 880, 120 S. Ct. 193, 145 L. Ed. 2d 162 (1999). “The test
for determining if the evidence is ‘substantial evidence’ ” to support an instruction for
a statutory mitigating circumstance, “is ‘whether a juror could reasonably find that
the circumstance exists based on the evidence.’ ” Watts, 357 N.C. at 377, 584 S.E.2d
at 748 (quoting Kemmerlin, 356 N.C. at 478, 573 S.E.2d at 892 (internal quotation
marks omitted)). As a result, “[e]ven if the defendant does not request the submission
of the [statutory] mitigator or objects to its submission, the trial court must submit
the circumstance when it is supported by sufficient evidence,” State v. Cummings,
361 N.C. 438, 471, 648 S.E.2d 788, 808 (2007) (citations omitted), cert. denied, 552
U.S. 1319, 128 S. Ct. 1888, 170 L. Ed. 2d. 760 (2008), with “any reasonable doubt
regarding the submission of a statutory or requested mitigating factor [to] be resolved
in favor of the defendant,” State v. Phillips, 365 N.C. 103, 146, 711 S.E.2d 122, 152
(2011) (quoting State v. Brown, 315 N.C. 40, 62, 337 S.E.2d 808, 825 (1985), cert.
denied, 476 U.S. 1164, 106 S. Ct. 2293, 90 L. Ed. 2d 733 (1986), overruled on other
grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)), cert. denied, 565
U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176 (2012). In other words, the actual fact-
finding decision must, under the procedures outlined in North Carolina’s capital
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Opinion of the Court
sentencing statues, be made by the jury rather than the trial or a reviewing court.
“[F]ailure to submit a statutory mitigating circumstance that is supported by
sufficient evidence is prejudicial error unless the State can demonstrate that the error
was harmless beyond a reasonable doubt.” Hurst, 360 N.C. at 194, 624 S.E.2d at 320
(citation omitted).
N.C.G.S. § 15A-2000(f)(6) creates a statutory mitigating circumstance
applicable to situations in which “[t]he capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
impaired.” N.C.G.S. § 15A-2000(f)(6) (2017). The (f)(6) statutory mitigating
circumstance
may exist even if a defendant has capacity to know right
from wrong, to know that the act he committed was wrong,
and to know the nature and quality of that act. It would
exist even under these circumstances if the defendant’s
capacity to appreciate (to fully comprehend or be fully
sensible of) the criminality (wrongfulness) of his conduct
was impaired (lessened or diminished), or if defendant’s
capacity to follow the law and refrain from engaging in the
illegal conduct was likewise impaired (lessened or
diminished).
Johnson, 298 N.C at 375, 259 S.E.2d at 764. Evidence, “expert or lay, of some mental
disorder, disease, or defect . . . to the degree that it affected the defendant’s ability to
understand and control his actions” supports submission of the (f)(6) statutory
mitigating circumstance. Kemmerlin, 356 N.C. at 479, 573 S.E.2d at 893 (quoting
State v. Syriani, 333 N.C. 350, 395, 428 S.E.2d 118, 142-43, cert. denied, 510 U.S. 948,
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114 S. Ct. 392, 126 L. Ed. 2d 341 (1993)). Even “[i]f the jury determines that the
defendant does not have an intellectual disability as defined by [N.C.G.S. § 15A-
2005], the jury may consider any evidence of intellectual disability presented during
the sentencing hearing when determining aggravating or mitigating factors and the
defendant’s sentence.” N.C.G.S. § 15A-2005(g) (2017), see also Bobby v. Bies, 556 U.S.
825, 829, 129 S. Ct. 2145, 2149, 173 L. Ed. 2d 1173, 1178-79 (2009) (explaining that
“mental retardation for purposes of Atkins[ v. Virginia], and mental retardation as
one mitigator to be weighed against aggravators, are discrete issues”).
In Fullwood, this Court found that the record contained “substantial evidence
to support [the (f)(6)] statutory mitigating circumstance,” including expert testimony
tending to show that the defendant’s intelligence was between “low normal” and
“retarded,” that the defendant “suffered from very low feelings of self-esteem and
‘inadequate personality,’ ” that the defendant’s “ability to understand and be
understood through words was severely limited,” and that the defendant was
suffering from emotional anguish at the time that he committed the murder at issue
in that case. 329 N.C. at 237, 404 S.E.2d at 844. Among other things, the expert
witness upon whose testimony we relied in concluding that the record supported the
submission of the (f)(6) statutory mitigating circumstance in Fullwood stated that
“the stress from [the defendant’s] poor relationship with his lover and child affected
the defendant’s limited intellectual resources to the extent that the defendant’s
judgment was very poor at the moment of the crime.” Id. at 237, 404 S.E.2d at 844.
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Opinion of the Court
Similarly, we have also stated that the record contained sufficient evidence to support
the submission of the (f)(6) statutory mitigating circumstance to the jury in light of
the existence of evidence concerning the defendant’s “impoverished skills,” “chronic
substance abuse,” “poor impulse control,” and “diminished capacity” resulting in the
defendant’s “failure to understand the consequences of his actions.” State v. Hooks,
353 N.C. 629, 641-42, 548 S.E.2d 501, 510 (2001), cert. denied, 534 U.S. 1155, 122S.
Ct. 1126, 151 L. Ed. 2d 1018 (2002).
The issue of whether the trial court should submit the (f)(6) statutory
mitigating circumstance to the jury does not hinge upon the presence or absence of
evidence tending to show that the defendant “was under the influence of a mental or
emotional disorder or disturbance” “at the time of the killing.” State v. Geddie, 345
N.C. 73, 102-03, 478 S.E.2d 146, 161 (1996) (ellipses in original) (finding that “[t]he
use of the word ‘disturbance’ in the (f)(2) circumstance shows the General Assembly
intended something more . . . than mental impairment which is found in [the (f)(6)]
mitigating circumstance’ ”), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43
(1997) (quoting State v. Spruill, 320 N.C. 688, 696, 360 S.E.2d 667, 671 (1987), cert.
denied, 486 U.S. 1061, 108 S. Ct. 2833, 100 L. Ed. 2d 934 (1988)). For example, in
State v. Stokes, this Court held that evidence tending to show that the defendant had
a lengthy history of “mental problems,” was “mildly retarded,” and suffered from an
“antisocial disorder,” 308 N.C. at 655, 304 S.E.2d at 197, sufficed to support a jury
determination “that defendant’s capacity to fully comprehend the wrongfulness of his
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Opinion of the Court
conduct was impaired or diminished” so as to require the trial court to “submit[ ] the
mitigating circumstance set forth in G.S. 15A-2000(f)(6) to the sentencing jury,” id.
at 656, 304 S.E.2d at 197, even though the record also contained evidence tending to
show that the defendant “was capable of distinguishing right from wrong at the time
of the offenses were committed,” id. at 654, 304 S.E.2d at 197.
The record before us in this case contains ample support for the submission of
the (f)(6) statutory mitigating circumstance. As an initial matter, we note that the
record contains considerable evidence tending to show that defendant suffered from
an intellectual disability, with the relevant evidence including expert testimony that
defendant had an average intelligence quotient score of 61, that this intelligence
quotient score placed defendant in the lowest two percent of the population, that
defendant’s intellectual disability initially manifested itself before defendant reached
the age of eighteen, and that defendant’s intelligence level will remain constant
throughout his life. In addition, the record contains ample evidence that defendant
suffers from multiple deficiencies in adaptive functioning and that defendant’s
exposure to extreme poverty, severe malnutrition, constant violence, and harmful
pesticides, coupled with his lack of formal education and access to meaningful health
care, make it more likely that defendant suffers from an intellectual disability. As
Dr. Puente noted, a defendant’s diminished intellectual capabilities impair his or her
reasoning capabilities. Secondly, the expert testimony contained in the present
record contains near-unanimous support for the proposition that defendant suffers
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Opinion of the Court
from an emotional disorder, such as dysthymic disorder (chronic depression) or post-
traumatic stress disorder, and that defendant killed Ms. Rodriguez during a time of
marital turmoil. As this Court indicated in State v. Greene, 329 N.C. 771, 777, 408
S.E.2d 185, 188 (1991), “an abnormally susceptible defendant” can be motivated “to
commit murder” by emotional turmoil despite the fact that “a person of normal
mental and emotional stability would likely have resolved [the situation] without
such disastrous results.” The evidence of defendant’s mental limitations and
disturbed and overwrought thinking supports a rational inference that defendant’s
ability to fully comprehend the wrongfulness of his conduct and to conform his
conduct to the requirements of the law was adversely affected at the time that he
murdered Ms. Rodriguez. Thus, the evidence contained in the record developed in
this case, like the evidence that this Court considered in cases such as Stokes and
Fullwood, more than suffices to permit a rational juror to conclude that defendant’s
capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law at the time that he murdered Ms. Rodgriquez was impaired,
so that the trial court erred by failing to submit the (f)(6) statutory mitigating
circumstance to the jury.
The State’s contention that the actions in which defendant engaged following
the murder of Ms. Rodriguez establish defendant’s awareness that his actions were
wrongful rests upon a misapprehension of the nature and effect of the relevant
statutory mitigating circumstance and the standard that the trial court should utilize
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Opinion of the Court
in determining whether a particular mitigating circumstance should be submitted to
the jury. In essence, the State’s argument assumes that any recognition of the
wrongfulness of his conduct on defendant’s part suffices to preclude the necessity for
the submission of the (f)(6) statutory mitigating circumstance. Aside from the fact
that this aspect of the State’s argument might be understood to require us to make a
factual, rather than a sufficiency of the evidence, determination, a rational juror is
entitled, as this Court recognized in Johnson, to find the existence of the (f)(6)
statutory mitigating circumstance even if the defendant knew “right from wrong,”
understood “the nature and quality of [the] act,” and “appreciate[d] . . . the
criminality” of the act at the time of the commission of the murder for which he or
she is being sentenced. 298 N.C. at 375, 259 S.E.2d at 764. Although intellectually
disabled and emotionally disturbed and overwrought individuals “frequently know
the difference between right and wrong,” “they have diminished capacities to
understand and process information, to communicate, to abstract from mistakes, and
learn from experience, to engage in logical reasoning, to control impulses, and to
understand the reactions of others” “[b]ecause of their impairments.” Atkins v.
Virginia, 536 U.S. 304, 318, 122 S. Ct. 2242, 2250, 153 L. Ed. 2d 335, 348 (2002). As
a result, even though the record in this case certainly contains evidence tending to
suggest that, at some level, defendant understood the criminality of his conduct and
attempted to undertake actions that were intended to avoid the consequences of his
wrongful conduct, that fact does not obviate the necessity for the submission of the
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Opinion of the Court
(f)(6) statutory mitigating circumstance given that the relevant legal test does not
treat any recognition of wrongful conduct on the part of a defendant as sufficient to
support the non-submission of the statutory mitigating circumstance in question.
The State’s suggestion that defendant’s failure to present explicit evidence that
the mental and emotional conditions from which he suffered existed and affected his
conduct at the time that he murdered Ms. Rodriguez is equally misplaced. As an
initial matter, we note that, while such evidence is necessary to support a finding
that the statutory mitigating circumstance enumerated in N.C.G.S. § 15A-2000(f)(2)
exists, the same is not true with respect to the statutory mitigating circumstance
enumerated in N.C.G.S. § 15A-2000(f)(6). See Geddie, 345 N.C. at 102, 478 S.E.2d at
161. Aside from the fact that Dr. Puente testified that defendant’s intellectual
limitations adversely affected his judgment at the time that he murdered Ms.
Rodriguez, the evidence tending to show that defendant’s intellectual disability had
manifested itself before the time that defendant turned eighteen and the evidence
tending to show that defendant’s post-traumatic stress disorder had its origins in the
impoverished and violent circumstances surrounding his childhood provide ample
support for an inference that the conditions that tend to suggest the appropriateness
of submitting the (f)(6) statutory mitigating circumstance existed and affected
defendant’s ability to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law at the time that he killed his estranged wife.
As a result, given that “any reasonable doubt regarding the submission of a statutory
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Opinion of the Court
or requested mitigating factor [must] be resolved in favor of the defendant,” Phillips,
365 N.C. at 146, 711 S.E.2d at 152 (alteration in original) (quoting State v. Brown,
315 N.C. at 62, 337 S.E.2d at 825), and given that this Court has never required that
the record contain explicit expert or lay testimony couched in the language set out in
N.C.G.S. § 15A-2000(f)(6) as a precondition for the submission of the (f)(6) statutory
mitigating circumstance to the jury, we conclude that the trial court erred by failing
to submit the (f)(6) statutory mitigating circumstance to the jury at defendant’s
capital sentencing hearing.
Finally, we are unable to hold that the trial court’s failure to instruct the jury
concerning the statutory mitigating circumstance enumerated in N.C.G.S. § 15A-
2000(f)(6) was harmless beyond a reasonable doubt. The State’s argument to the
contrary notwithstanding, this Court has held that an erroneous failure to submit a
statutory mitigating circumstance to the jury at a capital sentencing hearing is not
cured by the submission of other statutory and non-statutory mitigating
circumstances given that “[e]ach mitigating circumstance is a discrete circumstance”
with “its own meaning and effect.” Greene, 329 N.C. at 776, 408 S.E.2d at 187. For
that reason, the submission of other statutory and non-statutory mitigating
circumstances and the catch-all mitigating circumstance enumerated in N.C.G.S. §
15A-2000(f)(9) did not provide the jury with an adequate opportunity to consider the
extensive evidence tending to show that defendant’s “capacity . . . to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
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Opinion of the Court
impaired.” In addition, given the nature and extent of the evidence contained in the
present record concerning defendant’s intellectual limitations, mental health
diagnoses, and emotional turmoil, we are unable to conclude beyond a reasonable
doubt that no juror would have found the existence of the (f)(6) statutory mitigating
circumstance and given it substantial weight in the jury’s ultimate decision had the
(f))(6) statutory mitigating circumstance been submitted to the jury at defendant’s
capital sentencing hearing. As a result, defendant is entitled to a new capital
sentencing hearing.6
III. Conclusion
Thus, for the reasons set out above, we hold that the guilt-innocence and
intellectual disability proceedings conducted before the trial court were free from
error and that the outcomes reached in those proceedings should remain undisturbed.
We further conclude, however, that the trial court committed prejudicial error by
failing to submit the statutory mitigating circumstance enumerated in N.C.G.S. §
15A-2000(f)(6) to the jury at defendant’s capital sentencing hearing. As a result,
defendant’s death sentence is vacated and this case is remanded to the Superior
Court, Forsyth County for a new capital sentencing hearing.
In view of our decision that defendant is entitled to a new capital sentencing hearing,
6
we need not address defendant’s remaining challenges to his death sentence.
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Opinion of the Court
NO ERROR IN GUILT-INNOCENCE PROCEEDING; DEATH SENTENCE
VACATED; REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.
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Martin, C.J., dissenting
Chief Justice MARTIN dissenting.
Defendant beat and abducted his wife, Maria Rodriguez, before strangling her
to death. After defendant strangled Maria, he decapitated her and hid her head and
the rest of her body in two separate places. Maria’s skull was not found for two and
a half years.
A Forsyth County jury unanimously sentenced defendant to death for this
premeditated and deliberate murder. Rather than respecting the jury’s carefully
considered sentencing verdict, the majority tries mightily to apply the facts of this
case to the statutory mitigating circumstance found in N.C.G.S. § 15A-2000(f)(6). In
doing so, the majority overlooks the complete lack of evidence linking defendant’s
purported intellectual impairment, mental disorders, and marital strife to his
homicidal conduct. The majority also ignores the evidence showing that defendant’s
actions were carefully premeditated and that he took many steps to conceal his
identity as the perpetrator, evidence that would clearly prevent any reasonable juror
from finding the existence of the (f)(6) mitigating circumstance. For those reasons,
the majority’s holding is unsupported by the relevant sentencing statute and is
inconsistent with the vast majority of our decisions interpreting it. I therefore
respectfully dissent.
During the sentencing phase of a capital case, the trial court must submit a
statutory mitigating circumstance to the jury if the defendant has presented
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Martin, C.J., dissenting
“substantial evidence” of that circumstance. State v. Watts, 357 N.C. 366, 377, 584
S.E.2d 740, 748 (2003) (quoting State v. Fletcher, 354 N.C. 455, 477, 555 S.E.2d 534,
547 (2001), cert. denied, 537 U.S. 846, 123 S. Ct. 184 (2002)), cert. denied, 541 U.S.
944, 124 S. Ct. 1673 (2004). Evidence of a statutory mitigating circumstance is
“substantial” only if “a juror could reasonably find that the circumstance exists based
on the evidence.” Id. (quoting State v. Kemmerlin, 356 N.C. 446, 478, 573 S.E.2d 870,
892 (2002)). The burden of producing substantial evidence to support the submission
of a mitigating circumstance rests with the defendant. Id.
The (f)(6) mitigating circumstance states: “The capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired.” N.C.G.S. § 15A-2000(f)(6) (2017). It therefore
“embraces two types of disability, one diminishing a person’s ability to appreciate the
criminal nature of his conduct, and the other diminishing a person’s ability to control
himself.” State v. Price, 331 N.C. 620, 630-31, 418 S.E.2d 169, 175 (1992), judgment
vacated on other grounds, 506 U.S. 1043, 113 S. Ct. 955 (1993). But in both of these
instances, a defendant must produce evidence that his capacity “to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
impaired.” N.C.G.S. § 15A-2000(f)(6) (emphasis added). In other words, the (f)(6)
mitigating circumstance does not encompass every instance in which a defendant
presents evidence of an intellectual impairment or mental disorder. See State v.
Syriani, 333 N.C. 350, 395, 428 S.E.2d 118, 142-43 (“[The (f)(6) mitigating]
-2-
STATE V. RODRIGUEZ
Martin, C.J., dissenting
circumstance has only been found to be supported in cases where there was evidence,
expert or lay, of some mental disorder, disease, or defect, . . . to the degree that it
affected the defendant’s ability to understand and control his actions.” (emphasis
added)), cert. denied, 510 U.S. 948, 114 S. Ct. 392 (1993). Instead, a defendant’s
intellectual impairment or mental disorder must have actually impaired his capacity
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law—and the burden is on the defendant to produce evidence
establishing this link.
Even assuming for the sake of argument that defendant did, in fact, have an
intellectual impairment, as well as two mental disorders (namely, posttraumatic
stress disorder and chronic depression), and that he was experiencing marital
problems with Maria at the time of the murder, the mere presence of those conditions,
without more, does not require submission of the (f)(6) mitigating circumstance. See
id. Despite the clear requirement to do so, defendant did not present any evidence
demonstrating a link between those conditions, on the one hand, and his ability to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law, on the other. To support its conclusion that the trial court
should have submitted the (f)(6) mitigating circumstance, the majority conspicuously
forgoes any substantive analysis of how or to what extent defendant’s purported
intellectual impairment, mental disorders, or marital strife affected his capacity to
appreciate the criminality of his conduct or to conform his conduct to the
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STATE V. RODRIGUEZ
Martin, C.J., dissenting
requirements of the law. And this is for good reason: the record contains no evidence
that would support an analysis linking defendant’s purported conditions to his
homicidal conduct.
At trial, Judge Albright recognized the evidentiary inadequacy of defendant’s
request for submission of the (f)(6) mitigating circumstance, noting that defendant
had failed to present “any testimony to support” that instruction. Despite Judge
Albright’s astute handling of this issue, the majority tries to justify its holding by
pointing to the testimony of Dr. Antonio Puente, one of defendant’s expert witnesses,
who testified that defendant had a very poor ability to “reason and think.” But this
testimony, without more, does not show that defendant’s ability to appreciate the
criminality of his conduct was impaired. Nor does this testimony, without more,
suggest that defendant had an impaired ability to conform his conduct to the
requirements of the law. Poor reasoning skills do not necessarily impair one’s ability
to control his actions or to know what the law requires. Requiring the submission of
the (f)(6) mitigating circumstance in every instance in which a defendant has poor
reasoning skills, moreover, would likely mean that the mitigating circumstance
would need to be submitted in every case in which the defendant has an intellectual
impairment—an approach that this Court has clearly rejected and that would be
inconsistent with the limits that the statutory text of subsection (f)(6) itself imposes.
Notably, the only testimony directly relating to defendant’s ability to
appreciate the criminality of his conduct or to conform his conduct to the
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Martin, C.J., dissenting
requirements of law weighs in favor of the trial court’s decision not to submit the (f)(6)
mitigating circumstance to the jury. Dr. Selena Sermeño, another one of defendant’s
experts, testified that defendant generally seemed to be able to discern right from
wrong. This was evident, Dr. Sermeño testified, by defendant’s refusal to accept a
gun that a soldier offered to him during the El Salvadorian civil war, when defendant
was eleven years old. This testimony likely would not, by itself, be enough to foreclose
submission of the (f)(6) mitigating circumstance to the jury, see State v. Johnson, 298
N.C. 47, 68, 257 S.E.2d 597, 613 (1979), at least when a defendant shows a causal
nexus between his intellectual impairment and his ability to appreciate the
criminality of his conduct or conform his conduct to the requirements of the law. But
here, as the trial court recognized, defendant did not present evidence linking his
purported intellectual impairment to his homicidal conduct.
Defendant similarly failed to present any evidence that linked his alleged
posttraumatic stress disorder to his homicidal conduct. Two of defendant’s own
experts—Dr. Sermeño and Dr. Moira Artigues—testified that defendant’s
posttraumatic stress disorder did not manifest itself through irritability or violent
outbursts. Rather, it manifested itself through defendant’s impaired ability to
express strong emotions verbally or through body language, as well as poor sleep,
flashbacks, difficulty with smells and sudden noises, and difficulty with memories.
None of these symptoms have anything to do with defendant’s ability to appreciate
the criminality of his conduct or conform his conduct to the requirements of the law.
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And the record is similarly devoid of any explanation as to how defendant’s ongoing
marital problems or purported chronic depression impaired his ability to appreciate
the criminality of his conduct or to conform his conduct to the requirements of the
law.
Because evidence of any of these links was lacking, a jury would have had to
go beyond the evidence presented and speculate in order to conclude that the (f)(6)
mitigating circumstance may have applied here. And when the evidence is such that
a jury would have to base its finding of a mitigating circumstance “solely upon
speculation and conjecture, not upon substantial evidence,” submission of the
instruction to the jury is “unreasonable as a matter of law.” State v. Anderson, 350
N.C. 152, 183, 513 S.E.2d 296, 315 (quoting State v. Daniels, 337 N.C. 243, 273, 446
S.E.2d 298, 316-17 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953 (1995)), cert.
denied, 528 U.S. 973, 120 S. Ct. 417 (1999).
Even assuming for the sake of argument that defendant had produced evidence
linking his purported intellectual impairment, mental disorders, and marital
problems to his homicidal conduct, the record contains ample evidence that would
rebut any reasonable inference that defendant had an impaired ability to appreciate
the criminality of his conduct or conform his conduct to the requirements of the law.
As noted earlier, a statutory mitigating circumstance must be submitted only if a
juror could reasonably find its existence based on the evidence. Watts, 357 N.C. at
377, 584 S.E.2d at 748 (quoting Kemmerlin, 356 N.C. at 478, 573 S.E.2d at 892). The
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majority correctly recites this standard but then misapplies it. Although the
majority’s analysis seems to suggest otherwise, nowhere in our precedents have we
required our trial courts to view all evidence pertaining to the submission of the (f)(6)
mitigating circumstance in the light most favorable to the defendant, resolving
ambiguities and inconsistencies in his favor. And we have never, until today, directed
our trial courts to ignore the presence of overwhelming evidence that refutes any
suggestion that a defendant had an impaired capacity to appreciate the criminality
of his conduct or conform his conduct to the requirements of the law.
In fact, our precedents clearly show the opposite. We have repeatedly
recognized that a trial court may, in its determination of whether to submit the (f)(6)
mitigating circumstance, consider evidence rebutting a defendant’s argument that
the instruction should be submitted to the jury. For instance, we have held that a
trial court properly did not submit the (f)(6) mitigating circumstance when a
defendant’s academic performance and operation of a gambling business while in
prison were inconsistent with his argument that he had an impaired ability to
“understand and control his actions.” State v. Braxton, 352 N.C. 158, 215, 531 S.E.2d
428, 461 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890 (2001); see also State v.
Strickland, 346 N.C. 443, 464, 488 S.E.2d 194, 206 (1997) (“There was no evidence
that consumption of this alcohol so impaired defendant as to . . . affect[ ] his ability
to control his actions. In fact, there was direct evidence to the contrary.”), cert. denied,
522 U.S. 1078, 118 S. Ct. 858 (1998).
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In a line of recent cases, this Court has placed particular emphasis on whether
a defendant’s acts “demonstrate that [he] was aware that his acts were criminal,”
therefore negating any suggestion that the defendant’s capacity to appreciate the
criminality of his conduct was impaired. See State v. Polke, 361 N.C. 65, 72, 638
S.E.2d 189, 194 (2006), cert. denied, 552 U.S. 836, 128 S. Ct. 70 (2007). For instance,
we have held that the trial court properly declined to submit the (f)(6) mitigating
circumstance to the jury when the evidence showed that the defendant lured the
victim to the scene of the murder, disposed of the murder weapon, and had false
identification when he was apprehended. State v. Gainey, 355 N.C. 73, 104, 558
S.E.2d 463, 483, cert. denied, 537 U.S. 896, 123 S. Ct. 182 (2002). Based on this
evidence, the Court reasoned that the defendant “fully underst[ood] that his acts were
criminal.” Id. at 104, 558 S.E.2d at 483. In another case, this Court held that the
trial court properly did not submit the (f)(6) mitigating circumstance when a
“defendant’s initial lies to police about his involvement in the murder and his washing
and disposal of the murder weapon . . . tend[ed] to show that [the] defendant fully
appreciated the criminality of his conduct.” State v. Badgett, 361 N.C. 234, 258, 644
S.E.2d 206, 220 (citing State v. Golphin, 352 N.C. 364, 476, 533 S.E.2d 168, 240
(2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1380 (2001)), cert. denied, 552 U.S. 997,
128 S. Ct. 502 (2007).
Here, defendant’s conduct surrounding the murder of Maria demonstrates that
he had a full grasp of the gravity and criminality of his actions. And this same
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Martin, C.J., dissenting
evidence showing a careful, deliberate course of action indicates that defendant’s
mental faculties were not impaired during the course of the murder. While the
majority recognizes the brutal nature of this murder, it utterly fails to recognize the
legal significance of all of the preemptive steps that defendant took to conceal his
identity as the perpetrator.
Defendant’s actions when he came to Maria’s apartment shortly before the
murder provide ample evidence of defendant’s meticulous attempts to conceal his
crime. When defendant started arguing with Maria inside her bedroom and Maria
called for help, the children found that the bedroom door was closed and locked. He
also told the children not to call the police and took Maria’s cell phone away so that
they could not call for help after he assaulted their mother. After ending the
argument with Maria by incapacitating her, defendant transported Maria from the
apartment to his car by carrying her over his shoulder, all the while covering her face
with her work uniform so that the children could not see the condition of their
mother’s face. At that time, defendant told the children that Maria had hurt herself
on some furniture and that he was going to take her to the hospital. He told a
concerned neighbor a similar story and added that the children were not allowed to
visit Maria.
Defendant, moreover, took a number of additional steps to avoid being
identified as the perpetrator. For instance, defendant returned to Maria’s apartment
and attempted to clean up a pool of Maria’s blood that had soaked into the carpet. He
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Martin, C.J., dissenting
lied to their children, to his friend, and to investigating officers about what had
happened during his encounter with Maria in the bedroom. Soon after the murder,
when defendant was with the children, one of them attempted to check the trunk of
defendant’s car to see if Maria was there. When that child saw Maria’s work uniform
in defendant’s trunk, defendant quickly ran over and closed the trunk to try to
prevent his children from investigating further. Defendant told his children that
Maria’s uniform was there because the doctor had given it to him. The evidence also
suggests that defendant sent three text messages from Maria’s cell phone trying to
convince one of Maria’s friends that she had run away with a new boyfriend to Spain.
Most notably, however, defendant severed Maria’s head from her body after
the murder and hid Maria’s remains in two separate, heavily wooded areas. Maria’s
skull was not found for another two and a half years after the rest of her body was
discovered. The authorities never recovered Maria’s phone, the clothing that she
wore on the night of the murder, or the object used to remove her head, suggesting
that defendant carefully hid them in his effort to thwart a future prosecution.
Defendant’s actions before, during, and after the murder indicate careful
deliberation and an attempt to evade punishment, rebutting any reasonable inference
that defendant had an impaired capacity to appreciate the criminality of his conduct.
And these same actions—especially those leading up to the murder—bear no
resemblance to the frenzied, hectic behavior expected of a person with an impaired
capacity to conform his conduct to the requirements of the law. Nor are they
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Martin, C.J., dissenting
consistent with a “child-like thought process[ ]” or a “limited ability to think and
reason beyond the immediate moment,” as defendant argues. And despite what the
majority suggests, defendant’s actions demonstrate far, far more than a mere
“recognition of the wrongfulness of his conduct.”
Rather than acknowledging the legal significance of defendant’s acts
surrounding the murder and the lack of evidence linking defendant’s purported
mental conditions to his homicidal conduct, the majority instead focuses its analysis
on two cases that are inconsistent with the language of the (f)(6) mitigating
circumstance, and which, as a result, have become outliers in our jurisprudence.
Specifically, the majority rests the crux of its argument on State v. Stokes, 308 N.C.
634, 304 S.E.2d 184 (1983), and State v. Fullwood, 329 N.C. 233, 404 S.E.2d 842
(1991), which, according to the majority, dispel any requirement that a defendant
present evidence of a nexus between a defendant’s mental condition and the
defendant’s homicidal conduct.
To begin with, it is worth noting that Stokes and Fullwood are inconsistent
with cases that were decided before they were. In State v. Goodman, 298 N.C. 1, 257
S.E.2d 569 (1979), this Court held that if a defendant was intoxicated at the time of
the murder, but not to a degree that his capacity to appreciate the criminality of his
conduct or conform his conduct to the requirements of the law was impaired, the (f)(6)
mitigating circumstance should not be submitted to the jury. Id. at 32-33, 257 S.E.2d
at 589. This Court reaffirmed that principle in a similar case decided three years
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Martin, C.J., dissenting
later, State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 459 U.S. 1056,
103 S. Ct. 474 (1982). In Williams, this Court held that evidence showing that the
defendant drank alcohol on the night of a murder, without evidence showing “that
[the defendant’s] capacity to appreciate the criminality of his conduct was impaired
by [that] alcohol,” was insufficient to support submission of the (f)(6) mitigating
circumstance. Id. at 687, 292 S.E.2d at 262. These cases show that a defendant must
present evidence of a link to require submission of the (f)(6) factor to a jury and
therefore show that Stokes and Fullwood have been outliers in our jurisprudence ever
since they were decided.
More recent cases, moreover, have implicitly overruled Stokes and Fullwood
(or, alternatively, have confirmed that they were wrongly decided under preexisting
caselaw when they were handed down). In State v. Hill, 347 N.C. 275, 493 S.E.2d
264 (1997), cert. denied, 523 U.S. 1142, 118 S. Ct. 1850 (1998), we considered a case
in which the defendant exhibited personality traits of “emotional and social
alienation,” “mild depression,” “poor impulse control,” and “subaverage intelligence.”
Id. at 301-02, 493 S.E.2d at 279. But we held that the trial court was correct not to
submit the (f)(6) mitigating circumstance to the jury because “the testimony did not
establish that [the] defendant’s personality characteristics affected his ability to
understand and control his actions.” Id. at 302, 493 S.E.2d at 280 (emphases added).
Similarly, in State v. Gainey, expert testimony established that the defendant
suffered from “moderately severe to severe mixed personality disorder . . . , with
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Martin, C.J., dissenting
paranoid and schizoid features which tended to make him restless and impulsive.”
355 N.C. at 103-04, 558 S.E.2d at 483. But, consistent with our holding in Hill, we
held that this testimony, standing alone, did not amount to evidence that the
defendant’s capacity to appreciate the criminality of his conduct or conform his
conduct to the requirements of the law was impaired. See id.
The list goes on. In State v. Kemmerlin, the defendant presented evidence that
she had “borderline personality disorder” and “major depressive disorder.” 356 N.C.
at 480, 573 S.E.2d at 893. The defendant was additionally concerned that her stepson
was going to sexually abuse her daughter, and, because of the defendant’s own
experiences suffering sexual abuse, she was “exquisitely and overly attuned to sexual
issues.” Id. at 479, 573 S.E.2d at 893. But this evidence was insufficient to support
submission of the (f)(6) mitigating circumstance to the jury because the defendant’s
suffering, according to her own expert witness, “was not to the level of impairing her
ability to appreciate the wrongfulness” of her conduct. Id. at 481, 573 S.E.2d at 893.
To highlight the distinction between this case and cases in which the trial court
properly instructed the jury on the (f)(6) mitigating circumstance, we need to look no
further than the majority’s own citations. In State v. Hooks, 353 N.C. 629, 548 S.E.2d
501 (2001), cert. denied, 534 U.S. 1155, 122 S. Ct. 1126 (2002), the defendant suffered
from chronic substance abuse and underdeveloped skills for “emotional expression,
social connection, and adult functioning.” Id. at 640, 548 S.E.2d at 509. Although it
was not squarely reviewing the propriety of the trial court’s submission of the (f)(6)
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Martin, C.J., dissenting
mitigating circumstance,1 this Court emphasized the testimony of the defendant’s
expert witness: “[The defendant’s] substance dependence and the impoverished skills
for adult functioning combined such that his ability to think through his behavior, to
consider the consequences of his actions, to reasonably plan or to understand and
appreciate the connection between his actions and consequent events would have been
impaired at the time of the offense.” Id. (emphases added). In other words, as this
Court recognized, the evidence indicated much more than the mere presence of a
mental impairment; rather, expert testimony directly established a nexus between
the defendant’s impairments and how they manifested themselves, and therefore, a
jury could find that the defendant was not able to fully appreciate the criminality of
his conduct. See id.
As this Court has repeatedly recognized, then, evidence that a defendant
merely has an intellectual impairment or mental disorder is not enough to require
the trial court to submit the (f)(6) mitigating circumstance to the jury. Instead, the
defendant has the burden of linking his intellectual impairment or mental disorder
to his homicidal conduct. If a defendant does not produce evidence of this link, the
1 The discussion of the (f)(6) mitigating circumstance in Hooks was dictum; the Court
discussed the (f)(6) mitigating circumstance, which the trial court did submit to the jury, only
to contrast the trial court’s decision not to submit a different mitigating circumstance. Id. at
639-41, 548 S.E.2d at 508-09. Even though the Court’s discussion of the (f)(6) mitigating
circumstance was brief and not directly relevant to its holding, however, it is still helpful to
show how the defendant in that case presented evidence linking his mental conditions to his
homicidal conduct—which therefore justified the trial court’s submission of the (f)(6)
mitigating circumstance to the jury.
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Martin, C.J., dissenting
jury will not be able to infer the presence of the (f)(6) mitigating circumstance. When
it cannot, the trial court should not submit that instruction to it.
In sum, the language of the (f)(6) mitigating circumstance and the weight of
this Court’s caselaw interpreting that statutory provision require a causal nexus
between a defendant’s mental condition and his capacity to appreciate the criminality
of his conduct or conform his conduct to the requirements of the law. Here, defendant
presented no evidence of any such link. And by selectively relying on Stokes and
Fullwood—which are clear outliers in our jurisprudence—the majority is dictating a
change in law that has been relatively well settled for decades. See Payne v.
Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609 (1991) (noting that the “consistent
development of legal principles . . . contributes to the actual and perceived integrity
of the judicial process”). In any event, defendant’s conduct surrounding the murder
dispels any doubt that defendant freely chose not to conform his conduct to the law
and fully appreciated the criminality of his conduct. I therefore respectfully dissent.
Justice NEWBY joins in this dissenting opinion.
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